BOWDEN INSTITUTION V. OMAR KHADR

Amnesty International was represented in this case by Fannie Lafontaine, François Larocque, and David P. Taylor.

WHAT IS THIS CASE ABOUT?

Omar Khadr is a Canadian citizen who in 2002 was captured by American forces in Afghanistan. He had found himself in a fire fight and allegedly threw a grenade which resulted in the death of a US soldier. Mr. Khadr was 15 years old at the time. He was detained, interrogated, and sent to Guantanamo Bay, where he spent the next decade.

In 2003, Canadian officials visited and interrogated Mr. Khadr in Guantanamo Bay regarding the charges against him. The Canadian officials shared the information they obtained with US authorities. In 2005, Mr. Khadr was declared an enemy combatant and the US laid formal charges against him. He was to be tried before a Military Commission. In 2005, Mr. Khadr was declared an enemy combatant and the US laid formal charges against him. He was to be tried before a Military Commission.

In preparing his defense, Khadr sought an order from the Supreme Court of Canada requiring Canadian officials who interviewed him in Guantanamo Bay to disclose all records they had provided to American officials stemming from those interviews. The Supreme Court of Canada ordered that the government disclose that information to Mr. Khadr. In a second case before the Supreme Court of Canada, the Court found that “Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.” AI Canada intervened in that second Supreme Court of Canada case. To read more about our intervention in that case, click here.

In October 2010, Mr. Khadr agreed to plead guilty to all five charges against him in exchange for assurances that he would not receive a sentence greater than eight years and that after one year US authorities would agree to transfer him from Guantanamo Bay to Canada to serve the remainder of his sentence there.

Mr. Khadr was transferred to Canada on 29 September 2012 under the International Transfer of Offenders Act (ITOA). At the time of his transfer, Mr. Khadr was 26 years old and had been imprisoned for 10 years. Upon repatriation to Canada, Correctional Services of Canada (CSC) placed Mr. Khadr in a maximum security federal penitentiary. CSC did this on the basis of an internal administrative policy which states that where an offender receives a “global sentence” for multiple offences, the global sentence will be entered for each of the offences – in other words, to be served concurrently. Therefore, Mr. Khadr’s eight-year global sentence for the five offences handed down by the Military Commission was deemed by CSC to actually constitute five eight-year sentences to be served concurrently. The legal effects of CSC’s policy were to deem Mr. Khadr to be serving an adult rather than a youth sentence despite the fact that he was only 15 years old when the alleged offences were committed.

The practical consequences of such a determination are serious. A youth sentence carries many advantages in Canadian law. Youth sentences are designed to rehabilitate and reintegrate offenders in recognition that the events occurred when they were youths. As a result, youths are entitled to have their sentences reviewed by a youth court judge, as well as the National Parole Board. Those avenues offer far greater opportunities to ensure that the rights of offenders to rehabilitation and treatment as a former child solders are respected.

Mr. Khadr challenged CSC’s policy and demanded that he be transferred out of the federal penitentiary and into a provincial institution. When CSC denied Mr. Khadr’s request, he brought an application for habeas corpus. The chambers judge upheld CSC’s refusal to transfer Mr. Khadr. On appeal, the Alberta Court of Appeal reversed the lower court’s decision, determining that Mr. Khadr’s sentence should be treated as a global sentence and that he should be transferred into a provincial institution. The federal penitentiary’s warden and the government of Canada appealed the case to the Supreme Court of Canada. The Court was asked to determine the correct interpretation of sections 18 and 20 of the ITOA, which regulate whether Canada should treat transferred offenders as youths or adults.

AMNESTY INTERNATIONAL’S INTERVENTION

In our intervention before the Supreme Court of Canada, Amnesty International argued that the ITOA should be interpreted consistently with principles of international law on the transfer of offenders and the treatment of young offenders and former child solders. In particular, we argued that deeming Mr. Khadr’s sentence an adult sentence under the ITOA is incompatible with the international law principle of the best interests of the child, the duty to extend special protection to youth and child soldiers, and the goal of rehabilitation and reintegration. It is also incompatible with the prohibition on aggravating foreign sentences set out in the Canada-USA treaty on the Execution of Penal Sentences and the presumption of diminished moral responsibility of young persons.

STATUS OF THE CASE

In a rare decision made from the bench immediately after the hearing on 14 May 2015, the Supreme Court of Canada formally recognized Mr. Khadr’s status as a juvenile offender. This decision marked the third time that the Supreme Court of Canada has upheld Mr. Khadr’s rights in the face of the federal government’s actions, and the first time his status as a juvenile offender was officially acknowledged.

A week before the decision, on 7 May 2015, Mr. Khadr was granted bail pending the resolution of his outstanding appeal in the United States of the eight-year sentence handed down by the US Military Commission. Among the factors leading to that decision was a recognition that Mr. Khadr was a 15 year old child at the time he was apprehended by American authorities and sent to Guantanamo Bay. Madam Justice Ross of the Court of Queen’s Bench of Alberta noted that all evidence before her pointed to Mr. Khadr being “entirely cooperative,” a “model prisoner” with “strong community support” and a “low risk to public safety.” The decision was upheld by the Alberta Court of Appeal. While the government did not challenge any of that evidence, Public Safety Minister Blaney announced immediately after the bail ruling that the government would appeal the decision. However, in February 2016, the newly elected Liberal government announced that it would withdraw its appeal.

Mr. Khadr's appeal in the United States is considered to have a very strong chance of success based on rulings in similar cases.

On 7 July 2017, the Canadian Government announced that it had reached a settlement with Mr. Khadr and had provided him with compensation and an apology for the role Canadian officials played in the serious human rights violations he had endured while held by US forces in Guantanamo Bay from 2002-2012. In a statement following the announcement, Alex Neve, Secretary General of Amnesty International Canada noted,

"Omar Khadr has been trapped in an endless labyrinth of injustice, pain, abuse and torment for fifteen years. Today's settlement is acknowledgment that Canadian action and inaction contributed substantially to the human rights violations experienced by a young man whose ordeal began when he was captured as a 15 year-old child soldier. It offers Omar Khadr the means to repair the wrongs done to him and build a promising future he so keenly desires. It also sends a crucial message, across Canada and beyond, that human rights violations will not be tolerated in Canada's national security operations; and there will be consequences and amends when violations occur."